Communicated on 4 March 2014
FOURTH SECTION
Application no. 30459/13
Revaz GAKHARIA
against Georgia
lodged on 17 April 2013
STATEMENT OF FACTS
1. The applicant, Mr Revazi Gakharia, is a Georgian national, who was born in 1966 and lives in Tbilisi.
A. The circumstances of the case
2. The facts of the case, as submitted by the applicant, may be summarised as follows.
3. From 1999 the applicant lived with K.G.. On 9 January 2000 their daughter, L.G., was born. The girl was mainly raised by the applicant’s mother in Georgia, while both parents, whose relationship soon ended, left to work overseas.
4. On 24 June 2008 the Tbilisi City Court, acting upon K.G.’s request, ruled that the daughter’s permanent place of residence should be that of the mother. The decision was taken in the absence of the applicant, whose whereabouts – according to the case file – could not be established. At the same time, it appears that on 3 June 2008 the court of first instance ordered information concerning the proceedings to be published in a daily newspaper called 24 hours.
5. On 12 December 2008 the Tbilisi City Court, acting upon K.G.’s another request, ruled by default that the girl could be granted an international passport and leave the territory of Georgia without her father’s consent. The court again indicated that the applicant’s whereabouts were unknown and ordered the relevant information to be published in the daily newspaper 24 hours.
6. On 6 June 2012 the applicant lodged a complaint with the Tbilisi City Court requesting that both default decisions be set aside. He claimed that he had learnt about the decisions only in May 2012. He also explained that he had not been living in Georgia at the material time and that his former partner had been well aware of that, and that the default proceedings had been unfair as he had not been properly summoned to the hearings.
7. By a decision of 16 August 2012 the Tbilisi City Court rejected the applicant’s request. The court concluded, on the basis of Articles 71 § 3 and 422 of the Code of Civil Procedure, that the applicant had been duly informed about the proceedings in question and there was therefore no legal basis on which to set the impugned decisions aside. That decision was upheld by the Tbilisi Court of Appeal on 31 October 2012.
8. The applicant claims that he is currently unaware of the whereabouts of his daughter and cannot have any contact with her.
B. Relevant domestic law
9. The relevant Articles of the Code of Civil Procedure read as follows:
“Article 71. Serving of summons and consequences of failure to do so
1. A court summons is served on an addressee at the main address (place of residence) indicated by a party, at an alternative address, at a working address or any other address that is known to the court. ...
3. If the respondent party’s address indicated by the applicant is correct and nevertheless the court fails to serve a summons..., the court shall be guided by the rules stipulated in Article 78 of the current Code.”
“Article 78. Public announcement
1. If a party’s whereabouts are unknown... the court is authorised to order publication of the court summons. ...”
“Article 230. Absence of a respondent
1. If a respondent party who has been duly summoned pursuant to Articles 70-78 of the present Code fails to appear at a court hearing and the applicant requests delivery of a default judgment, the factual circumstances indicated in the complaint are considered to be proven.
2. If the factual circumstances indicated in the complaint legally substantiate the request, it shall be granted. Otherwise, the court shall reject the applicant’s request.”
“Article 233. Instances in which a default judgment shall not be delivered
1. A court shall not deliver a default judgment if
a) the absent party has not been summoned pursuant to the rules of Articles 70-78 of the present Code;
b) the court has been informed of force majeure or other circumstances which could have prevented the party from appearing in court on time;
c) the party absent was not informed of the factual circumstances of the case in good time. ...”
“Article 236. Appeal against a default judgment
A party who has failed to appeal at a court hearing, as a result of which a default judgment has been delivered against him or her, and a respondent party in the cases specified in Article 232 § 1 of the current Code, can lodge an appeal with the same court requesting that the default judgment be set aside and the case reopened.”
“Article 241. Grounds for setting aside a default judgment
A default judgment shall be set aside and the case reopened if any of the grounds listed in Article 233 are present, or if a party was absent for a valid reason of which he or she could not inform the court at the relevant time.”
COMPLAINTS
10. Relying on Article 6 § 1 of the Convention, the applicant complains of the refusal of the domestic courts to set aside the two decisions delivered in his absence. In that connection he also refers in substance to Article 8 of the Convention claiming that his parental rights of contact with his daughter have been breached.
QUESTIONS TO THE PARTIES
1. Did the applicant have a fair hearing in the determination of his civil rights and obligations, in accordance with Article 6 § 1 of the Convention? In particular, were the principles of equality of arms and adversarial proceedings, as well as the right to be present at the hearing, respected as regards the examination of the cases by the Tbilisi City Court without the applicant’s participation? Was the applicant’s right of access to court breached, on account of his inability to challenge the decisions taken by default?
2. Has there been a violation of the applicant’s right to respect for his family life, contrary to Article 8 of the Convention, on account of the domestic courts’ decision to allow his daughter to leave Georgia without his consent, as well as his inability to challenge the above decision? In connection with the applicant’s allegation that he has lost contact with his daughter as a result, did the applicant exhaust all effective domestic remedies?
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